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January 3, 2012

Lamenting the case for scrapping the death penalty in California

Charles Johnson has this op-ed today in Los Angeles Times titled "California's death penalty: Unusual but not cruel; Capital punishment in California should be streamlined, not abolished." Here are excerpts:

Death penalty foes have seized on the cost issue for their latest attempt at killing it off. Led by Natasha Minsker of the ACLU of Northern California, they are gathering signatures to put the so-called SAFE California initiative on the November 2012 ballot. Minsker's co-written report, "California's Death Penalty Is Dead," concedes that it is the appeals process that clogs the courts, noting that "death penalty trials cost up to 20 times more than trials for life imprisonment without the possibility of parole.... Taxpayers are legally required to pay for numerous appeals in death penalty cases, unlike cases involving life without possibility of parole, where the prisoner gets only one taxpayer-funded appeal."

Only 13 death row inmates have been executed since Californians voted, by a 2-to-1 margin to reinstate capital punishment in 1978, over the objections of then-Gov. Jerry Brown, who had previously vetoed it. Californians, like most Americans, like the death penalty and favor it by roughly the same margin they did in 1978. Support softens when life without parole is considered as an alternative, perhaps because of expense issues. Nonetheless, according to a Field Poll in September, 68% of Californians support capital punishment.

One mark of its popularity is how often it is meted out. For all the supposed blood lust of Texans, where more inmates are executed (and more cheaply), California's jurors are twice as likely to sentence criminals to death. According to a Cornell University study, this is because Texas' death penalty sentencing criteria are far more objective than California's; juries in states with "subjective" death penalties — where they take into account heinousness, for example — are twice as likely to impose the death penalty than are states with stricter guidelines.

That subjectivity gives inmates, activists and lawyers just enough wiggle room. Take Robert Alton Harris, the first Californian executed in 25 years. Harris admitted to murdering two boys because he wanted their car for a crime spree. He even finished off the Jack in the Box burgers they were eating. But Harris' lawyers spent 13 years dragging out his appeals. Or consider Randy Kraft, convicted in Orange County's costliest trial of murdering and mutilating 16 young men. Among his contentions on appeal, he has argued that execution would force him to "actively participate in his own killing," violating his 1st Amendment religious protections. Kraft, suspected in 67 killings, has become a champion bridge player on death row....

Meanwhile some lawsuits countering the death penalty have gone from frivolous to farcical. One, filed against the Food and Drug Administration, argues that California's drug supply of sodium thiopental for executions was improperly obtained abroad. It's the FDA's job, the lawyers say, to make sure that even death penalty drugs are safe and reliable.

Those invented dangers don't concern serial wife-killer Jerry Stanley, who after living on death row for 28 years has volunteered to be executed using the three-drug protocol, despite Fogel's apprehensions. "I am willing to be the experimental guy to see whether or not they work," Stanley told The Times. Despite having recently been ruled competent by a judge, Stanley cannot decide how he should meet his end — thanks to what he calls the lawyers' gravy train that stands between him and execution. "I disagreed with trying to get me life when I deserved the death penalty," Stanley says of his court-appointed attorneys 30 years ago. In so arguing, Stanley displays rare sanity in the capital punishment debate.

"There is a point in the history of society when it becomes so pathologically soft and tender that among other things it sides even with those who harm it, criminals, and does this quite seriously and honestly," noted Nietzsche, writing in "Beyond Good and Evil." The voters may test whether we have reached that point, but in any case, we are close to it. Pity California.

This op-ed understandably expresses frustration about the operation of capital punishment in the Golden State, but it does not address the extraordinary political and legal challenges that would be involved in trying to "streamline" the death penalty in California. Given that the state has taken the better part of a decade just to figure out how to develop a constitutional legal injection protocol, I have no confidence it could work through a sound "streamline" in less than a half-century.

Comments

"The state hired two anesthesiologists...but the doctors balked, saying their involvement would violate their Hippocratic oath."

Physicians such as these surely shun participation in purposeful pregnancy termination also.

"I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan; and similarly
I will not give a woman a pessary to cause an abortion."--Hippocratic Oath courtesy of the NIH

Posted by: Adamakis | Jan 3, 2012 1:31:48 PM

Sometimes a little context helps.

Historically, what we have is a standard, an example, that stands above all else. However, in the evolution of human society, especially in the Christian era, Nietzsche sees the "herd" of common people reconstructing their own position, a position in which mediocrity can become a virtue, a "herd morality." It is within this movement that the concept of "evil" is invented so that "good and evil" becomes a true dichotomy, or balance. And the concept of "evil" is a device that intends to level the human world. In #201, Nietzsche writes, "everything that elevates an individual above the herd and intimidates the neighbor is henceforth called evil; and the fair, modest, submissive, conforming mentality, the mediocrity of desires attains moral designations and honors." He continues, "There is a point in the history of society when it becomes so pathologically soft and tender that among other things it sides even with those who harm it, criminals, and does this quite seriously and honestly." All of this is amplified further in #260. The section ends with the declaration, "we have a different faith," setting the theme for the remainder of the book. "To teach man the future of man as his will, as dependent on a human will, and to prepare great ventures" is Nietzsche's message. But we are fearful of leaving the "security" of the herd and we elevate our fears in images of leaders who make mistakes, who fail, or who degenerate. The balance point of morality lies in this trade off -- what seems secure by tradition even if it diminishes life versus what men can create out of their own will to become though that may mean risk and painful growth. BEYOND GOOD AND EVIL

Is this where Charles Johnson is going?

Posted by: George | Jan 3, 2012 2:52:40 PM

adamakis: "Physicians such as these surely shun participation in purposeful pregnancy termination also."

me: I'm actually not a fan of voluntary abortions (that means, I'm "pro-choice," but I'd never make the choice to have an abortion unless my life was in danger), but the situations are not at all comparable because there are instances where abortion is necessary to save the life of the mother because there are complications of pregnancy which can and will kill you unless the pregnacy is ended. There are also cases where a complacations of a pregnancy may or may not kill you, but can result in serious physical injury to the mother. Which is to say that even from a "pro-life" prospective there is always the life of the mother to consider when looking at abortion. Only someone who hates women would oppose abortion in the case of serious pregnancy complications where the mother and fetus will both die or even in cases where serious harm to the health of the mother is going to result without an abortion. If anything connected to abortion would be actually "murder," that would be the case there because doctors know that the mother's life can be saved but fail to act.

That is never the case with capital punishment because it is never the case that the life of a third person will definitely end if capital punishment does not take place. There is no physical health connection to a third party involved in capital punishment.

Erika :)

Posted by: virginia | Jan 3, 2012 3:27:37 PM

If the voters don't dispense with the death penalty via the initiative process, will Jerry Brown commute all death sentences -- possibly on his last day in office?

Posted by: Calif. Capital Defense Counsel | Jan 3, 2012 3:57:41 PM

California's death row sure gets a lot of media attention for a state which never has any executions.

Posted by: DaveP | Jan 3, 2012 7:01:37 PM

DaveP --

The point of all the California coverage is to make it appear that the DP just can't succeed. A place like Virginia, where it succeeds just fine, and without excess delay or cost, gets largely swept under the rug.

Posted by: Bill Otis | Jan 3, 2012 10:17:23 PM

Virginia:

A young girl turning 18 just died giving birth because she denied herself chemotherapy for the sake of her child--the penultimate act.

My relation (by marriage) delivered approximately half of the entire population of Bennington, VT as of 1984, without ever coming across a life-or-death need for abortion in four decades.

C. Everett Koop, an expert in premature births and infant surgery for over four decades as well, wrote that he similarly never identified a single case where aborting the baby would save the life of the mother.

Thus the aforementioned heroic sacrifice was very rare indeed, but not an ahistorical scenario.

Studies indicate that in no more than 1% of abortions is "risk to maternal health or life" cited as the cause.

These babies are innocents, not murderers facing punishment.
Like you, neither my family nor those such as Koop hate women.

Posted by: adamakis | Jan 3, 2012 11:54:27 PM

adamakis, this isn't the place to debate abortion, but rather than judging women for the choices they make, you should be thankful that you apparently do not know anyone who ever had complications which caused her to have to terminate a pregnancy to save her life.

If you did, you also might realize how incredibly callous you sound.

Posted by: virginia | Jan 4, 2012 12:52:23 PM

Virginia stated: "Only someone who hates women would oppose abortion in the case of serious pregnancy complications where the mother and fetus will both die or even in cases where serious harm to the health of the mother is going to result without an abortion."

The above is silly beyond comment but I will anyway.

Do you consider a person who supports convenience abortion "someone who hates babies?" I doubt it but you choose to use such a declarative statement about the other camp. The above statement shows your pro-death inclinations regardless of your attempt to sound "reasonable."

Does a woman who chooses to have a baby at her own physical risk of death hate women too? Like I said, silly.

Another major issue with the language of your exposition is the use of "serious pregnancy complications," "serious harm to the health of the mother," et al. We both know that this is the typical progressive ploy of playing with the language to sound reasonable. In practice, it means that even psychological conditions are justified by the patient and doctor as a "serious complication" that could result in "serious harm to the health of the mother." Pregnancy/childbirth itself meets this despicable threshold, as it has inherent dangers that can be fatal. Again, it is a call for the status quo holocaust wrapped in the verbiage of false compassion.

In addition to the examples adamakis gave, I would point to Ron Paul (BTW, I am not a fan of his), who is an OBGYN that has delivered 4000 babies. He too has never seen a case where a pregnancy needed to be terminated to save the mother.

Posted by: TarlsQtr | Jan 4, 2012 2:23:01 PM

Virginia stated: "adamakis, this isn't the place to debate abortion, but rather than judging women for the choices they make, you should be thankful that you apparently do not know anyone who ever had complications which caused her to have to terminate a pregnancy to save her life.

If you did, you also might realize how incredibly callous you sound."

Have you ever held the little hand of a murdered baby extracted from her mother in the third month of pregnancy? Or have you ever worked with women who are suffering from guilt and psychological problems due to their choice to have an abortion?

If you did, you also might realize how incredibly callous you sound.

Posted by: TarlsQtr | Jan 4, 2012 2:27:22 PM

"If you did, you also might realize how incredibly callous you sound."

TarlsQtr & Virginia:
I don't know why I sound "incredibly callous" to you.
I have been involved with this issue on both sides, having formerly supported NOW-NYC, but then having experienced something similarly emotional to that which TarIsQtr describes.

For about 200 million Americans, simultaneous support for the death penalty for deliberate killers, and for the abolition of elective abortion for the unborn, is wholly consistent and caring, both intellectually and morally.

Posted by: Adamakis | Jan 5, 2012 11:16:56 AM

adamakis, its incredibly callous because my sister had to terminate her pregancy to save her life because of severe preeclampsia with HELPP.

calling the doctors who saved my sister's life "murderers" is beyond offensive

I'm trying to be nice to you because you would have had no way of knowing that, but believe me when I say "be thankful."

Posted by: virginia | Jan 5, 2012 6:20:13 PM

Virginia/Erika :):

My sincerest apologies.

Posted by: adamakis | Jan 5, 2012 10:25:07 PM

Hello Erika,

Your sister went through a difficult time that I can definitely be thankful that it did not happen to my family. I am not going to pretend to judge her specific case, as it is far beyond my ability to do so.

Speaking in general terms, HELPP is almost always a third trimester illness. Regardless of whether a baby is viable at the time (third trimester babies generally are), doctors can deliver the baby rather than abort it. If the baby lives, the parents are blessed. If nature takes its course and the baby dies, it is not murder.

Posted by: TarlsQtr | Jan 6, 2012 1:25:58 AM

TarlsQtr, you are correct about the practice of delivering the babies even in the thankfully extremely rare pre-viability cases - that is what is done in my sister's case even though the baby had zero chance of survival. What you may not know is what the chaplin told us (I was still in school at the time, so I was at the hospital with my parents becausae it was winter break): the deliveries in such cases are done solely for psychological purposes to allow the family to have a funeral and to have a gravesite to visit.

Practically speaking, I see no practical difference between such a delivery and an abortion since in both cases the pregnancy is terminated to save the mother's life.

adamakis, apology accepted :)

Erika :)

Posted by: virginia | Jan 6, 2012 6:40:04 PM

Hi Erika,

I would point out that HELPP can be treated until viability and almost never requires immediate action.

The difference between delivery and abortion, IMO, is intent. Just as killing a man to steal his car is different than killing a man who breaks into your home, so is a procedure intended to kill a baby different than one attempted to save both lives, even if the baby's survival is unlikely.

God Bless.

Jeff

Posted by: TarlsQtr | Jan 6, 2012 6:54:05 PM

MICATZ, a non-profit organization based in Tanzania, places volunteers from across the world willing to assist in various welfare projects in schools, hospitals, orphanages, monasteries, community/government organizations etc. with an aim to educate and help influence the life of the deprived people throughout Asia, Africa and Latin America.